Archive for June, 2009

First, an introduction.I’m a political scientist specializing in voting behavior, electoral systems, turnout, and methodology.While American, I’ve worked at two European universities in the past 8+ years, so my contributions will necessarily be comparative in nature.I’ve also been a Seattle Mariners fan since 1977.One of the few benefits (aside from seeing a lot of baseball in the Kingdome) is being well conditioned to losing, a character strength that aids in my equally consistent support for the Democratic Party and progressive politics.

While I aspire to draw comparative links between politics on both sides of the Atlantic, I also aspire to greatness.The latter hasn’t exactly played out as planned, so I offer no guarantees on the former.Over the next few days, I’ll comment on British politics.Of course, intra-party regicide doesn’t have a patch on the Sotomayor nomination, it does make for good, wholesome, family fun.

The Guardian yesterday called for Gordon Brown to step aside as party leader.I agree.When you lose support of The Guardian, and you’re haemorrhaging cabinet ministers (and volunteers for promotion into the cabinet appear to be in short supply), you’re toast.He’s lost the plot (assuming he ever had one).While Labor would seem to be my natural political home on this island, and I could tolerate Tony Blair’s kinder, gentler brand of Thatcherism out of political expediency, Brown should have represented, at least, a modest step back towards the progressive inclinations of old Labor.He hasn’t.If anything, he’s drifted further to the right than Blair, while simultaneously lacking the charismatic, witty, foppish charm of the former PM (read: electability).As it stands, if I were able to vote in the 2010 election (an outside possibility), I would struggle to support Labor.

Ideology aside, a Labor government is preferable to that offered by the Tories.Of course, nobody can divine what David Cameron’s Conservatives stand for, least of all Cameron himself, smart money places the Tories to the right of the present right-of-center government.Current polls predict Labor getting hammered in the next general election (to be held no later than June 2010).Both Ipsos/MORI and Populous/Times estimate support for Labor at 18%, with the Tories at 40% or 41%.While this puts the latter just within the margin of error of the Thatcher-Major years, it estimates Labor support 10 full points below their electoral disaster in 1983 (when the party manifesto was only semi jokingly called the “longest suicide note in history”).Labor 1983 made Mondale 1984 look like electoral genius.Labor 2010 under Brown would recast 1983 as an electoral golden age.Of course, uncertainty is introduced in dropping Brown, and calling an election sooner than June 2010 would be a political necessity.However, there is no uncertainty about the party’s chances if they retain Brown.

The organ grinders who live in Michael Goldfarb’s head are grinding their organs over the question — posed with an uncertain degree of seriousness but with the predictable degree of smugness — of whether Obama speaks Arabic. It’s ridiculous enough that he poses the question based on the preznit’s startling ability to express gratitude in another language; but Goldfarb, bringing 50 percent more wank to the discussion, turns to the Wingnut Secret Muslim hymnal and reminds his readers that Nichols Kristoff “heard Obama recite the Muslim call to prayer in Arabic and with a ‘first-rate accent‘ back in 2007″ and then wonders “if the president hasn’t been concealing some greater fluency with the language of the Koran.”

Of course, what Kristof actually wrote was that Obama recited “the opening lines” of the adhan — a remarkable feat, since were talking about 15-20 syllables. By the same goofy logic, the fact that I can remember how to recite the Lord’s Prayer in Latin should cause LGM readers to wonder if I’ve not been concealing some greater fluency with the papist conspiracy to assassinate Lincoln the language of the caesars.

I would add a few caveats: 1)I agree with Volokh that the opinion should have done a better job at least of addressing the fact that the precedents dealing with the incorporation of the 2nd Amendment evaluated a different theory of incorporation than the Court is currently using (although this probably wouldn’t change the outcome), 2)This is more the Supreme Court’s fault than 7CA, but I would be especially leery of using Cruikshank, one of the lowest points in the Court’s history, as precedent for anything if avoiding it is remotely possible, and 3)You can’t really cite Richard Posner (who joined Easterbrook’s opinion) in an “even-the” comparison, given that he thinks Heller was wrong.

Still, the general point holds. The Second Amendment will almost certainly be incorporated against the states. But given the body of precedent in the area, it’s also completely appropriate for this to be done by the Supreme Court, not by the circuit courts. It’s not the business of lower appellate judges to overrule the precedents of higher courts. Sotomayor’s position is wholly unobjectionable and it would be erroneous to infer any great hostility to gun owners from it.

Anybody get a screenshot of the LGM mention tonight? Doesn’t seem to be up on the MSNBC site…

I’d have to say that when we started this thing I didn’t expect it to get mentioned on a major liberal TeeVee news program. Wait, a primetime liberal TeeVee news program? That’s the most ridiculous thing I’ve ever heard!

Like Yglesias, I strongly recommend this piece from Jeffrey Toobin. Supreme Court appointments being political, various forms of diversity have always been a major part of the selection process for judges — and this is perfectly appropriate. Everyone knows that Bush never seriously considered appointing a white person to replace Thurgood Marshall — and he shouldn’t have. I also agree with Lithwick that while Thomas certainly proves most Republicans as world-class hypocrites, more importantly he proves that the liberal position is right on the merits. Given the political reality that Bush in that context was going to choose a proven Federalist Society type, Thomas has almost certainly made a more unique and interesting contribution to the Court than any alternative would have.

I had assumed that Michael Goldfarb and Fred Barnes had established a gap between the intellect of someone challenging the qualifications of Sonia Sotomayor and the intellect of Sonia Sotomayor that could never be extended. I may have been wrong. You have to like the way she can’t even deliver the meaningless buzzwords cleanly (apparently, Sotomayor “litigates from the bench.” Oh noes!) Bonus points for the way the unbearably smug host pronounces Sotomayor’s name.

Unfortunately, this will probably be too late to help prevent an appalling precedent. I’d like to think that Stevens is gently asking Souter if this is really the way he wants to go out, sort of like what Earl Warren did with Stanley Reed when the latter was holding out on Brown…

Alito’s critics have similarly ignored much evidence that his 15 years of steady, scholarly, precedent-respecting work as a judge tell us more about him than a handful of widely (and misleadingly) publicized memos that he wrote more than 20 years ago.

And some may see Sotomayor’s [innocuous] letter [written as an undergraduate] as evidence that she was predisposed to look for the worst, not the best, in the institution that had afforded her such opportunities. She now sits on Princeton’s Board of Trustees.

So, if I understand correctly, memos Alito wrotedirectly about important constitutional issues while applying for an important government job should be disregarded, but letters that Sotomayor wrote as a student are somehow important despite their utter lack of relevance to any discernible constitutional issue. And I must have missed Taylor’s series of posts giving Sotomayor’s opinions the most moderate possible reading. But I’m sure he has deeply principled reasons for all this!

And note the additional hackery — to say that a circuit court judge is “respectful of precedent” is non responsive to the well-supported argument that Alito was doctrinaire conservative, both because how a judge interprets ambiguous legal materials is more important and because when elevated to the Supreme Court Alito wouldn’t be bound by precedent. (Alito has, of course, been exactly the completely doctrinaire reactionary the Bush administration expected when it picked him, because that’s what all the evidence suggested.) Strange, though — I haven’t seen Taylor even try to argue that the one case he’s ever cited to defend his proposition that Sotomayor is some kind of left-wing radical was inconsistent with 2nd Circuit precedent. Must be an oversight…

I’ll be writing later this week about whether judicial appointments are ideologically predictable. But I find this assertion from Randy Barnett Barret rather problematic:

Everyone knows it’s all over but the spinning, but Lefties can take special solace in an odd trend: Liberal high court justices stick to their ideology on the bench while rightward picks have tended to drift to the left over time. Nobody can agree on why.

The poster children most often praised/cursed are Harry Blackmun, William Brennan, Sandra Day O’Connor, David Souter, John Paul Stevens, and Earl Warren — all of whom were nominated by Republican presidents and went on to side with the liberal bloc on key Court decisions. President Dwight D. Eisenhower ultimately described his appointment of Warren as “the biggest damn-fool mistake I ever made.”

It seems to me that Barnett is conflating two issues here: ideological drift, and judges who were picked for reasons other than ideology. Blackmun is the strongest example of a drift leftward over time, but between the fact that he was always moderate and his unique status as the author of Roe (who was consequently vilified by many conservatives), it seems equally clear that generalizing from his example would be foolhardy. O’Connor also drifted left, although this was partly her changing and partly the Court around her getting a lot more conservative. Stevens changed even less. But Brennan and Souter and Warren? They were never conservative by the standards of their time, there was never any particular reason to believe that they would be, and more to the point they didn’t change so much as start left and remain consistent.

And then, of course, there are counterexamples — Frankfurter, Black after 1960 — of liberal judges who became more conservative. Especially once you adjust for the fact that reactionary positions will tend by definition to be less popular over time, I don’t really see any evidence that ideological drifts are a one-way ratchet.